Case Studies

Epstein Becker Green Obtains Protective Order

On April 6, 2010, Epstein Becker Green achieved a big win for its client, the Mount Sinai School of Medicine (the "Medical School"). Defense counsel representing Kentile Floors, a defendant in an asbestos personal injury litigation, subpoenaed the Medical School seeking all of the research records and personal correspondence of Dr. Irving Selikoff, a now deceased former member of the Medical School's faculty. Dr. Selikoff's work is world renown as he was the first to identify the link between asbestos exposure and disease. Defense lawyers have striven for years to discredit Dr. Selikoff's research in the asbestos litigation. The Medical School is constantly fending off these subpoenas and dealing with related litigation. Other research institutions face similar challenges and have expressed the concern that a court ruling requiring the Medical School to produce the private correspondence and memoranda of a faculty member not otherwise involved in the underlying litigation would have a chilling effect on the willingness of other scientists whose research would benefit public health or enhance workplace safety. Epstein Becker Green successfully fought back this latest effort and was rewarded with an excellent and strongly worded decision that provides most significantly that the:

expense Mt. Sinai would incur as a result of such a broad interpretation of the subpoena could well discourage other institutions from conducting vital health and safety research. Other scholars in the laboratory may fear that their unpublished notes, observations and ideas could be released to the public as a result of litigation. Although a scholar's right to academic freedom is not absolute, it should factor into a court's analysis on whether forced disclosure of documents in permissible (see, In R.J. Reynolds Tobacco Co., 136 Misc.2d supra at 287).

The Epstein Becker Green team that represented the Medical School included New York attorneys William A. Ruskin, Beth Essig, and Victoria M. Sloan.

On January 31, 2011, Epstein Becker Green obtained a dismissal of a case brought by two plaintiffs—a state psychological association and an individual psychologist—seeking broad limitations, through the application of the patient-psychologist privilege, on the information that a health benefits plan could seek from or concerning insureds to establish the medical necessity of initial or continued mental health treatment. The New Jersey court found that neither plaintiff had a direct injury or associational or third-party standing and questions of privilege needed to be determined in the sort of case-by-case approach that precluded the granting of broad, general relief against the health benefits plan or those providing administrative or utilization management review services to the plan.

The Epstein Becker Green team representing those providing administrative or utilization management review services to the plan included New Jersey Litigation attorney James P. Flynn.

Epstein Becker Green’s civil action on behalf of a medical school client led to a temporary restraining order (TRO) and, later, a preliminary injunction issued against a disgruntled former student. That former student set up websites with infringing domain names that would emerge in standard Internet search engines and divert those seeking actual client websites to land on the former student’s webpages filled with vitriolic anti-client rhetoric; statements disparaging the client, its educational services and its officers; and factually false information concerning the client, its graduation rates, and certain financial matters.

The facts and legal arguments developed by Epstein Becker Green led to the court enjoining such conduct and disabling the websites, which occurred in less than 12 hours from the issuance of the first order. The court found a likelihood of success on the merits on the contract claims, trademark infringement claims, and cybersquatting claims, concluding that the client had demonstrated defendant’s “bad faith” under Title 15 of the United States Code and rejecting the former student’s claims of non-commercial speech entitled to protection.

In early 2014, federal Judge Anne E. Thompson, sitting in New Jersey, found that the rogue former student had breached his non-disparagement obligations under a prior settlement agreement and had wrongfully infringed upon our client’s trademark rights in violation of the federal Anticybersquatting Act. Judge Thompson permanently enjoined defendant and all those acting in concert with him, including all Internet registrars and hosting entities, from publishing or disseminating any statements intended to disparage the medical school and its administrators.